Philip Johenning v. Milton, Town of - Town Clerk (SPR 20230361)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 8, 2023 SPR23/0361 Susan M. Galvin Town Clerk Town of Milton 525 Canton Avenue Milton, MA 02186 Dear Ms. Galvin: I have received the petition of Philip Johenning appealing the response of the Town of Milton (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 18, 2022, Mr. Johenning requested, “…a copy of itemized bill summaries, invoices, requests for payment documents, legal documents, insurance claims made, records of any discussion of any proposed settlement between the Town and its insurer or with the plaintiff, any correspondence related to those insurance claims and other records, e-mail, traditional mail, notes from telephone or other meetings, etc., related to [a specified case].” Previous appeals This request was the subject of previous appeals. See SPR22/2406 Determination of the Supervisor of Records (November 3, 2022) and SPR23/0132 Determination of the Supervisor of Records (February 3, 2023). The Town provided a response on February 17, 2023. Unsatisfied with the Town’s response, Mr. Johenning petitioned this office and this appeal, SPR23/0361, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Susan M. Galvin SPR23/0361 Page 2 March 8, 2023 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town’s February 17th response In its February 17, 2023 response, the Town produced 25 emails and claimed attorney- client privilege and work product to withhold the balance of the requested records. Current appeal In his appeal, Mr. Johenning states that “I do not believe that [Town counsel] has shown an attorney-client relationship. My experience is that there typically exists an agreement between the party/parties and their attorney. [Town counsel] represents the Town of Milton. That does not create an attorney-client privilege between [defendant] or [counsel for defendant] or [Town counsel].” Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege, the Supervisor of Records “shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a).

Susan M. Galvin SPR23/0361 Page 3 March 8, 2023 In its response, the Town stated the following: These emails are protected by the attorney-client privilege or the work product doctrine, as they constitute communications between counsel for the purpose of providing legal advice to the Town and Town officials regarding the lawsuit referenced in your request…[.] Moreover, [counsel for defendant] represented [named defendant], a Town official, in the litigation filed by [named plaintiff]…[.] As Town Counsel, I represent the Town with respect to any interest it may have had in the same litigation. As such, myself and [counsel for defendant] were engaged in a joint defense with respect to the litigation. See Hanover Insurance Co. v. Rapo & Jepsen Insurance Services, Inc., 449 Mass 609, 612 (2007) (“doctrine ‘extends the attorney-client privilege to any privileged communication shared with another represented party’s counsel in a confidential manner for the purpose of furthering a common legal interest.’”). Although the Town was not a party to the case, nor a party to the settlement of the case, I continued to communicate with [counsel for defendant] regarding the status of the case to determine whether the Town had any legal interest or litigating position in the matter. The Town has not waived its right to assert the attorney-client privilege with respect to these communications; nor is the Town aware of [named defendant] waiving the privilege with respect to any of these emails (with the exception noted below). As a result, the Town has withheld these emails as they are protected from disclosure. The Town is also in possession of five (5) additional records responsive to your request. This includes an email sent on March 10, 2022, and an email sent on March 25, 2022 by [named defendant] to the then Interim Town Administrator for Milton, [named individual]. In these emails, [named defendant] forwarded emails from his [counsel for defendant], regarding the settlement of the lawsuit referenced in your request. [Interim town administrator] forwarded the email she received on March 10, 2022, to me on March 10, 2022. [Interim town administrator] forwarded the email she received on March 25, 2022, to me on May 19, 2022, and again on June 8, 2022. [Counsel for defendant] sent me an email on March 11, 2022, stating, among other things, that the March 10, 2022, email from [named defendant] to [interim town administrator] was protected by the attorney client privilege. A portion of that email chain is produced herein, with some redactions. On April 12, 2022, [counsel for defendant] sent me and [interim town administrator] an email stating that the March 25, 2022, email from [named defendant] to [interim town administrator] was protected by the attorney client privilege. That email is produced herein. As such, these emails between [named defendant] and [counsel for defendant] have been withheld pursuant to the attorney-client privilege. Moreover, even if these records are not protected by the attorney-client privilege, they are protected by the Exemption C to the Public Records Law.

Susan M. Galvin SPR23/0361 Page 4 March 8, 2023 To the extent that the Town has shown a common interest in the litigation at issue in this appeal, I find that the Town has demonstrated the existence of an attorney-client relationship. The Town has also demonstrated that the communications at issue were made in confidence and that the privilege to these communications has not been waived. Further, where the Town has provided a detailed privilege log, I find the Town has established the existence of an attorney-client relationship in compliance with Suffolk and the Public Records Law. As such, I decline to opine on the applicability of the attorney work product doctrine as it operates though Exemption (d). Based on the Town’s response, I find the Town has met its burden to withhold the original 27 emails at issue in this appeal under the attorney-client privilege. Regarding the emails sent on March 10, 2022 and March 25, 2022 between the named defendant and the interim town administrator, it is unclear how they are communications received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such. It is additionally uncertain whether these emails were made in confidence and whether or not that privilege has been waived. Suffolk, 449 Mass. at 450, n. 9. The Town must clarify these matters. Regarding the emails forwarded on March 10, 2022, May 19, 2022, and June 8, 2022 from the interim town administrator to the Town counsel, although these emails are communications received from a client, it is unclear whether they were received during the course of the client’s search for legal advice. Further, it is unclear whether those emails were made in confidence and whether or not the privilege has been waived. The Town must clarify these matters. Based on the above, I find the Town has not met its burden to withhold these additional emails under the attorney-client privilege. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The portion of the Town’s response regarding its intention to withhold the additional emails under Exemption (c) of the Public Records Law did not contain the specificity required in a denial of access to public records. The Town merely cited Exemption (c) without any

Susan M. Galvin SPR23/0361 Page 5 March 8, 2023 explanation of the applicability of the exemption to the responsive records. It is unclear how the information contained in the records constitutes one of the core categories of information that could be withheld under Exemption (c). It is additionally uncertain how this information constitutes intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, with regard to the balancing test described above, the Town has not demonstrated how the privacy interest at issue outweighs the public interest in knowing whether such public servants are carrying out their duties in a law abiding and efficient manner. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 291-292 (2017). The Town must clarify these issues. Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Town is ordered to provide Mr. Johenning with a response to his request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Johenning may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Philip Johenning